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Telecommunication Right of Way Rules, 2024

Background:

On September 19, 2024, the Department of Telecommunications, (“DoT“) issued the Telecommunications (Right of Way) Rules, 2024 (“RoW Rules“) under the Telecommunications Act, 2023 (“Telecom Act“). The RoW Rules, which will come into force on January 1, 2025, seek to regulate the establishment, operation and maintenance of underground telecommunications infrastructure on public property and will supersede the Indian Telegraph Right of Way Rules, 2016 (“2016 Rules“), and the Indian Telegraph (Infrastructure Safety) Rules, 2022, notified under the Indian Telegraph Act, 1885.

The RoW Rules address the inconsistencies, and the lacunae identified in the 2016 Rules, including the imposition of higher charges by local bodies, inconsistent timelines for grant of permission, and differential validity period of permission, amongst others. Hence, to simplify procedures, facilitate faster and easier deployment of telecommunications infrastructure and to enable a more efficient 5G rollout the RoW Rules were introduced. This blog highlights the key changes brought by the RoW Rules to the existing legal framework and analyses their impact.

Regulatory update:

Some key features of the RoW Rules are as below:

  • Scope and Applicability:  The RoW Rules widened the eligibility requirements for individuals applying for a right of way permission for telecommunication networks by substituting the term ‘licensee,’ with ‘facility providers.’ The term ‘facility providers’ encompasses the Central Government as well as public entities. The term ‘public entities’, includes not only the Central and State Governments and any authority, body, or company established by them, but also any non-governmental entity vested with the ownership, control, or management of public facilities as notified by the Central Government.
  • Appointment of a Nodal Officer:  The RoW Rules require that each public entity should appoint a nodal officer within 30 (thirty) days from the commencement of the RoW Rules. The nodal officer will be tasked with managing the right-of-way procedures and coordinating communication between the public entities and the telecommunications facility providers.
  • Establishing Underground / Overground Telecom Network on Public Property:  Similar to the process under the 2016 Rules, the Row Rules provide that the facility providers seeking to establish an underground telecommunication network must apply through the designated portal. Public entities are required to process these applications within the stipulated timeframe of 45 (forty-five) days. If no decision is made within this period, the permission is deemed granted. 
  • Establishment of a Temporary Overground Telecom Network: In the event of any damage caused to an existing overground telecom network, a facility provider may temporarily establish an overground telecom network in the prescribed manner, in order to promptly restore telecom services. Pertinently, no prior permission is required to establish the temporary overground telecom network for such purposes. However, the original infrastructure must be completely restored within 60 (sixty) days from the date of reporting of the damage to the public entity. This position remains the same as under the 2016 Rules. 
  • Obligations of a Facility Provider: A facility provider who has been granted right of way must ensure, among other responsibilities, that all necessary payments are made, the terms and conditions of the permission are followed, public safety measures are implemented, and real-time information about the underground telecommunication network is provided through positional intelligence. In line with the 2016 Rules, the public entity retains the authority to oversee and inspect the execution of works by the facility provider to verify compliance with the conditions of the permission granted. The public entity may impose additional conditions if necessary. Furthermore, the public entity has the right to terminate the permission in the event of payment defaults by the facility provider and may require the facility provider to forfeit the bank guarantee in cases of wilful violations of the conditions for granting permission. 
  • Telecom Network on Property other than Public Property: Unlike the 2016 Rules, the RoW Rules introduced a detailed procedure for facility providers seeking to establish a telecommunication network on any immovable private property. Facility providers must obtain prior consent and enter into a mutual agreement with the individual or entity holding ownership, control, or management of the property. Public entities are prohibited from charging fees or compensation for the installation of telecom networks on such properties. The RoW Rules outline specific terms that must be included in these agreements, such as the time and method of entry, the consideration payable, actions to address any property damage, including restoration or compensation, and other measures to minimize inconvenience and enhance safety. 
  • Common Duct and Cable Corridor:  The RoW Rules requires the public entity having ownership or control or management over such a project to provide an online application process to enable open access to facility providers on a non-discriminatory basis, subject to payment of charges based on prevailing market rights and based on the principle of cost recovery over a minimum period of 25 (twenty-five) years. This has been seen as a crucial initiative to strengthen the essential infrastructure required for last mile connectivity and appears to lay the foundation for expanding digital public infrastructure in India.
  • Removal and Relocation of existing Telecom Networks: In contract to the 2016 Rules, the RoW Rules permit any individual with control, ownership, or management of a property to request that the facility provider remove, relocate, or modify the underground or overground telecommunication network installed on the property for a reasonable, expedient, and necessary reason. Under the 2016 Rules, this authority was granted to the appropriate authority only.

Analysis:

The RoW Rules build upon the framework established under the 2016 Rules, introducing key provisions aimed at simplifying the process of obtaining right of way permissions. The DoT has identified this as an essential component for facilitating a faster rollout of 5G services nationwide, alongside spectrum allocation, and service deployment. The right of way framework under the RoW Rules are designed to reduce costs and timelines, supporting the expansion of telecommunication infrastructure. They strike a delicate balance between the necessity for infrastructure development and the safeguarding of public interests, ensuring both safety and fairness in the deployment of telecommunication networks.

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